1. On December 9, 1996, the Inter-American Commission on Human
Rights (hereafter "the Commission") received a complaint submitted by Alirio
Uribe Muñoz, President of the Corporación Colectivo de Abogados "José Alvear
Restrepo". The petition alleged that the Republic of Colombia (hereafter
"the State", "the Colombian State" or "Colombia") violated
the rights to life (Article 4), personal integrity (Article 5), and judicial protection
(Articles 1 and 25) enshrined in the American Convention on Human Rights (hereafter the
"American Convention") of Carlos Manuel Prada González (also known as
"Enrique Buendía") and Evelio Antonio Bolaño Castro (also known as
"Ricardo González").

II.CONTEXT

2. On March 23, 1993 the State issued Decree No. 542 setting forth an
initiative to facilitate dialogue with armed dissident groups and to enable their
demobilization and reintegration into civil society. On April 1, 1993, the State initiated
a dialogue with spokespersons or representatives of the group known as Corriente de
Renovación Socialista (hereafter "CRS") with the purpose of reaching a
number of agreements for the demobilization of this group and re-incorporation of its
members into civil society in accordance with the governments peace policy. After
various discussions between Ricardo Santamaría Salamanca and other officials of the
governments Office for Peace, and representatives of the CRS, and with the
assistance of Mons. Nel Beltrán, bishop of Sincelejo, the parties reached preliminary
agreements intended to facilitate the process of negotiation.

3. In the context of these preliminary agreements, there was apparent
confusion between the Colombian government and the CRS as to the status of the town of
Blanquicet, in the municipality of Turbo, department of Antioquia. Members of the CRS
believed Blanquicet to be part of a "cease-fire zone" referred to as a zona
de distensión, that would not be subject to military activity. The State considered
that Blanquicet did not fall within a zona de distensión. In any event, the
parties agreed that at least one of the CRS spokespersons would be transported by
the government to Urabá for the purpose of meeting with members of the CRS located in
that area. This meeting was aimed at facilitating the subsequent transfer of the armed
dissidents in Uraba to camps in Flor de Monte, municipality of Ovejas, Sucre, in order to
formally start the peace negotiations and the process of reincorporation of the CRS
members into the social and political life of the country.

4. Apparently, authorities of the Ministry of Defense and the Armed
Forces were informed of the upcoming visit of armed dissidents to the area and the need to
temporarily remove military presence in Blanquicet.

5. The petitioners allege that Ricardo Santamaría Salamanca delegated
to Gonzalo de Francisco, one of his subordinates, the task of arranging the suspension of
military activity in the area on September 20, 1993. On that date, the parties to the
peace talks planned to transport the two CRS spokespersons to Blanquicet in a civilian
helicopter.

III. FACTS ALLEGED IN THE COMPLAINT

6. The petition alleges that on Monday, September 20, 1993, Mr. Prada
González and Mr. Bolaño Castro were transported by a helicopter, owned by a company
called Helicol, to the town of Blanquicet. As a security measure, the two
dissidents were accompanied by Mr. Ernesto Parada Malavar, a representative of the
Presidents Office. When they arrived in Blanquicet, Mr. Prada González and Mr.
Bolaño Castro were dressed in civilian clothing, and carried small arms (pistols or
revolvers) for self-defense.

7. After leaving Mr. Prada González and Mr. Bolaño Castro in
Blanquicet, Mr. Ernesto Prada, in accordance with an agreement between the State and the
CRS, continued in the helicopter to the Colombian armys base in the municipality of
Carepa. The helicopter refueled at the army base. Army Colonel Becerra and Major Clavijo,
who were apparently the commanding officers of the base at the time, subsequently asserted
that Mr. Ernesto Prada never informed them of the presence of the CRS representatives in
the area, nor of the reason for their trip.

8. On Tuesday, September 21, Mr. Prada González and Mr. Bolaño
Castro spoke at a meeting of the residents of Blanquicet and informed them that the town
had been chosen as a coordination point for the transfer of CRS combatants to the town of
Flor del Monte. Additionally, Mr. Prada González and Mr. Bolaño Castro assured the
residents that they need not fear any fighting between the army and the CRS because the
dissidents had reached agreements with the government. According to the two CRS leaders,
both the civilian government and the Colombian army were aware of the CRS presence in the
area.

9. On Wednesday, September 22, at just before 5:00 p.m., twelve members
of the CRS arrived in Blanquicet, entering from the north. At the same time, Mr. Prada
González and Mr. Bolaño Castro, in the company of other dissidents, were having a soft
drink at a place called Postobón. Postobón is located about five hundred meters from the
spot where the group of twelve dissidents entered the community. About fifteen minutes
later, three army trucks entered the town.

10. Mr. Prada González and Mr. Bolaño Castro became aware of the
presence of the army when the soldiers entered the area. One of the army trucks stopped at
the entrance to Blanquicet, and another crossed the town and stopped at the other end.
Soldiers jumped out of each vehicle and began searching for Mr. Prada González and Mr.
Bolaño Castro.

11. According to witnesses, Mr. Prada González and Mr. Bolaño Castro
were dressed in civilian clothing and carrying their small arms at the time. Initially
they attempted to speak with the soldiers entering the area. When the soldiers became
aggressive, however, Mr. Prada González and Mr. Bolaño Castro tried to flee, running
across the countryside towards the east. At that moment, the two CRS spokesmen were alone,
separated from the other dissidents who had arrived in Blanquicet. They stopped about four
hundred meters from the road, and Mr. Prada González removed his white shirt and began to
wave it at government troops, screaming that he was one of the CRS negotiators; one
of those who was making peace.

12. According to the record before the Commission, at least two
witneses testified that they saw soldiers capture Mr. Prada González and Mr. Bolaños
Castro before the two dissidents were killed.1 According to the testimony
of Luis Enrique Nisperuza, the two dissidents surrendered with their hands in the air to
the army troops, who surrounded them. A soldier then killed Mr. Bolaño Castro by shooting
him in the head at point-blank range. The soldiers forced Mr. Prada González to carry Mr.
Bolaño Castros body to the side of a road, where the troops killed Mr. Prada
González.2 During this episode, Mr. Nisperuza did not see any of the
armed dissidents present in Blanquicet fire at the army troops.

13. At 7:30 p.m., the bodies of Mr. Prada González and Mr. Bolaño
Castro were transported in one of the army trucks to the Police Inspection office in
Blanquicet. The bodies remained there until the early hours of the following day. At 7:00
a.m. on September 23, a number of witnesses saw a soldier sitting in front of a typewriter
belonging to the Police Inspector. Moreover, the witnesses reported that the Inspector
said that he had to sign the document testifying to the removal of the bodies, although
the inspector had not actually moved the corpses.

14. Members of the army delivered the bodies to the hospital in
Chigorodó later that morning. One of the bodies was shirtless, but a white shirt was
presented with the bodies. The shirt had mud on it, but was not bloodstained. Forensic
specialists subsequently concluded that both men died as a result of gunshot wounds that
did not occur during combat.3

IV. COMPETENCE

15. The Commission has prima facie jurisdiction to examine the
complaint, because it relates to alleged violations of the American Convention. The
alleged violations took place when the obligation to respect and guarantee the rights
established in that Convention was fully in force for the Colombian State.

V. ADMISSIBILITY

A. Exhaustion of Domestic Remedies

16. According to Article 46 of the Convention, before the Commission
can admit a petition for its review, all internal domestic legal remedies must first be
exhausted. The Commission will not impose this prerequisite when the victims of the
alleged human rights violation, or their legal heirs, have been denied access to domestic
legal remedies, or have been impeded in their efforts to exhaust these internal measures.4 Thus, in this matter, for the purpose of admissibility, the Commission
must determine whether the victims exhausted domestic legal remedies, and if not, whether
the exception to the exhaustion requirement should apply.

17. The analysis of the record of the case reveals that the State has
never expressly contested the question of admissibility in its observations. The
States failure to make a timely objection to the admissibility of the complaint in
this matter may be construed by the Commission as a tacit waiver of the American
Conventions requirement of exhaustion of domestic legal remedies.5
Nevertheless, the Commissions rulings on the admissibility of the cases brought
before it are intended to provide greater security and legal certainty, besides focusing
the attention of the parties on the central issues at stake.6 Bearing
such considerations in mind, without prejudging the merits, the Commission will
examine the extent to which the present complaint fulfills the admissibility requirements
of the American Convention and its Rules of Procedure.

1. Military Criminal Process

18. On September 23, 1993, the Tenth Military Auditor (Auditor
Auxiliar de Guerra), located in Carepa, Antioquia and attached to the Colombian
armys Seventeenth Brigade, began a preliminary investigation into the deaths of Mr.
Prada González and Mr. Bolaño Castro.

19. On January 3, 1994, the Military Judge No. 2, in Carepa, Antioquia
took charge of the preliminary investigation.

21. On January 19, 1994, the petitioners, represented by Luis Guillermo
Pérez Casas, requested the military courts permission to join the same proceeding
in order to contribute to the investigation and establish the responsibility of the
members of the Colombian army.

22. On January 28, 1994, the military Judge charged with the
investigation declined to file formal charges against the above-named soldiers. The Judge
also declined to file formal charges against three other low-ranking officers and fourteen
enlisted men implicated in this case.

23. On the same date, the military Judge charged with the investigation
rejected the petitioners request to join the proceeding, explaining that inclusion
of the victims in the matter was not appropriate in the system of Military Criminal
Justice.

24. On July 15, 1994, the Judge invalidated the proceedings up to that
date, again refusing to charge the accused soldiers on the ground that they had not
received proper counsel but had been defended by military officers.

26. On June 21, 1995, the Superior Military Tribunal issued a decision
on the appeal filed by the accused. This Tribunal revoked the order of preventive
detention issued by the lower Military Court, and ordered the immediate and unconditional
release of the defendants.

27. On October 18, 1996, Major General Iván Ramírez Quintero, the
Commander of the First Division of the Colombian army, and Judge of the First Instance,
closed the proceedings against all of the accused.

29. At the same time, the Superior Military Tribunal ordered that
criminal proceedings continue against Captain Néstor Vargas Morales, Lieutenant José
Velandia Mora and Sargeant Luis García for the crime of cover-up, and against the
enlisted-men, Albeiro Fernando Jiménez, Edgar Tovar Florez, Carlos Martínez Rojas and
Jorge Restrepo Díaz for homicide in excess of self-defense.

30. On August 8, 1997, the case was returned to the Commander of the
First Army Division, Judge of the First Instance.

31. On February 3, 1998, the petitioners, citing the jurisprudence of
Colombias Constitutional Court, requested permission from the Judge of the First
Instance to join the proceedings. On February 6, 1998, the Judge of the First Instance
granted this request.

32. On February 17, 1998, the petitioners requested that the Judge of
the First Instance declare himself incompetent to continue the criminal investigation. The
request was based on a Constitutional Courts decision issued on August 5, 1997,
which excluded from military jurisdiction crimes of extreme gravity committed by members
of the Armed Forces and the National Police. On February 18, 1998, the Judge of the First
Instance rejected the claim on the ground that the deaths of Mr. Prada González and Mr.
Bolaño had occurred in combat during a military operation and therefore were inextricably
linked to military service.7

33. After a military trial held from April 1  6, 1998, in Santa
Marta, Magdalena, the members of the Court Martial unanimously found all of the defendants
"not guilty" of the crimes charged.

35. On August 8, 1994, the Delegate Procurator for the Armed Forces
issued disciplinary sanctions against the accused, including their expulsion from military
service, for violating the rights to life and peace.

36. On May 18, 1995, the Delegate Procurator for the Armed Forces
confirmed the previous decision.

3. Contentious-Administrative Proceedings

37. On January 25, 1995, the legal heirs of the victims presented a
claim before the Contentious-Administrative Tribunal in Antioquia for damages resulting
from the deaths of Mr. Prada González and Mr. Bolaño Castro. The Tribunal admitted this
claim on August 31, 1995.

38. On April 16, 1996, the Contentious-Administrative Tribunal opened
the procedural phase for the production of evidence. In November 1996, the victims
legal heirs requested the joinder of the two cases. The decision concerning such joinder
is still pending.

4. Analysis on Admissibility

39. Article 46(1)(a) of the American Convention specifies that
admission of a petition requires that "remedies under domestic law have been pursued
and exhausted in accordance with generally recognized principles of international
law." Those remedies which must be exhausted are those which are suitable to address
the alleged infringement of a legal right.8

40. In a case such as this one, when the alleged violation of a right
may properly be characterized as a criminal offense, the victims or their legal heirs have
the right to a judicial investigation and a decision by an ordinary criminal court
determining, when possible, responsibility for the crimes committed and punishing those
responsible.9 Thus, the appropriate remedy is a criminal proceeding including a criminal
investigation and sanctions, as well as the possibility of monetary compensation to the
survivors of the victim.

41. Article 46(2)(b) of the American Convention provides the Commission
with the discretion to excuse the prerequisite of exhaustion of domestic remedies when the
victim or victims have been impeded in their efforts to access internal legal remedies.
With respect to adequacy of military courts to redress human rights violations the
Commission has expressed that:

The military tribunals do not
guarantee that the right to a fair trial will be observed since they do not have the
independence that is a condition sine qua non for this right to be exercised.
Moreover, their rulings have frequently been biased and have failed to punish members of
the security forces whose serious involvement in serious human rights violations has been
established.10

42. Additionally, a recent decision of Colombias Constitutional
Court restricts the jurisdiction of military courts over human rights violations to a
narrow range of cases:

In order for a crime to fall under
the competence of the criminal military justice system, there must be a clear link from
the start between the crime and activities of military service. That is, the punishable
act must arise as an excess or an abuse of power occurring in the scope of an activity
directly linked to a proper function of the armed forces.11
(emphasis added)

43. Without prejudging the merits of this case, it could be argued that
the killings of Mr. Prada González and Mr. Bolaño Castro occurred as an excess or abuse
of power while members of the Colombian army were capturing them. The same Constitutional
Court opinion, however, establishes one more limitation on military jurisdiction, which
applies to the case at hand:

The link between the criminal act
and the activity related to military service is broken when the crime is extremely
grave, such as with crimes against humanity. In these circumstances, the case should
be remitted to the civilian justice system.12 (emphasis added)

44. Thus, without prejudging the merits, the Commission concludes that
the criminal process instituted before military justice system has not provided the
victims or their legal heirs with access to an effective remedy. Therefore, for the
purpose of admissibility, the Commission deems that the requirement of exhaustion of
domestic remedies mandated by Article 46(1) of the American Convention must be excused.

45. The Commission notes that in addition to the criminal
investigation, a disciplinary proceeding and a contentious administrative proceeding were
initiated in relation to the deaths of Mr. Prada González and Mr. Bolaño Castro. The
Commission considers that neither of those jurisdictions have, or could have, provided a
suitable remedy for the violations alleged in this case, and thus, need not have been
exhausted.

46. A disciplinary proceeding, even one such as in this case, which
resulted in disciplinary sanctions, simply is an insufficient remedy in a case involving
the violent death of a person allegedly at the hands of State agents. Such a case should
terminate in the criminal sanction, whenever possible, of the persons responsible for the
crimes allegedly committed. The disciplinary sanction of those responsible, by itself,
could not adequately repair the rights violated.

47. Regarding the contentious-administrative process, still pending,
the Commission has concluded in other cases relating to Colombia that such jurisdiction is
"intended only as a means of supervision of the States administrative activity
and to obtain compensation for damages caused by abuse of authority."13
A contentious-administrative process does not constitute, in general, an adequate
"means of redress of human rights violations" and thus need not be exhausted in
a case such as this one.14 Monetary compensation for damages inflicted,
absent any determination as to wrongdoing, is not an adequate or appropriate remedy in
this case.

48. In addition, the Commission notes that in many member States of the
OAS, including Colombia, a decision to convict in a criminal proceeding generally includes
or precedes an order to pay compensation to those victims or family members who
participated in the proceedings as civil parties. Thus, the criminal proceeding, which
would constitute the appropriate remedy in cases such as this one, provides for the
possibility of obtaining monetary compensation in addition to criminal sanction. The
petitioners should not be required to seek exhaustion of the contentious-administrative
remedy, which can provide only monetary compensation, when another remedy exists which
serves to provide monetary compensation as well as the criminal investigation and sanction
demanded in such a case. When the criminal proceeding does not redress the human rights
violation, including the right to compensation, the victims should not have to exhaust
another remedy in order to obtain that compensation. Therefore, for the purposes of
Article 46 of the Convention, the fact that the contentious-administrative process is
still pending should not affect the admissibility of the case.

B. Duplication of procedures

49. The Commission considers that it appears from the record of
the case that the matter is not pending before another international organ for settlement.
Accordingly, this case satisfies the requirement of Article 46(1)(c) of the American
Convention.

C. Grounds for inadmissibility according to Article 47

50. Article 47(b) of the American Convention establishes that the
Commission should consider inadmissible any petition if it does not state facts that tend
to establish a violation of the rights guaranteed in the Convention.

51. In this case, the petitioners have submitted a number of arguments
that in principle tend to characterize a colorable claim regarding the possible violations
of Articles 1(1), 4, 5 and 25 of the American Convention. The Commission considers that
the requirements established in Article 47(b) have been satisfied.

IV. FRIENDLY SETTLEMENT

52. On March 3, 1998, the Commission placed itself at the disposal of
the parties with a view to initiating a procedure for friendly settlement, and set a time
limit of thirty days for them to state their positions. On April 7, 1998, the petitioners
responded that they would agree to participate in a friendly settlement procedure, but
only if the State first accepted its responsibility in this matter and takes measures to
ensure that these kinds of incidents are not repeated. The petitioners also requested the
creation of a committee to follow the progress of the friendly settlement process and the
reparations due for the human rights violations that allegedly occurred. To date, the
State has not replied to the Commissions offer of facilitating a friendly settlement
in this case.

V. CONCLUSIONS

53. On the basis of these factual and legal considerations, the
Commission concludes that the present case fulfills the requirements for admissibility as
set forth in Articles 46 and 47 of the American Convention.

54. Based on the above considerations,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,

DECIDES:

1. To declare the petition admissible.

2. To transmit this report to the petitioners and to the Colombian
State.

3. To continue its analysis of the merits of the case.

4. To reiterate its interest in placing itself at the disposal of the
parties to reach a friendly settlement in accordance with the proceeding contemplated in
the American Convention and the Regulations of the Commission.

5. To publish this report and to include it in the Annual Report of
the Commission to the OAS General Assembly.

Done and signed by the Inter-American Commission on Human Rights in the City of
Washington D.C., on the 25th day of the month of September, 1998. (Signed):
Carlos Ayala, Chairman; Robert K. Goldman, First Vice Chairman; Jean Joseph Exume, Second
Vice Chairman; Commissioners Claudio Grossman, Helio Bicudo and Henry Forde

7 Decision of Brigadier General Victor Julio Alvarez
Vargas, Commander of First Division and Judge of the First Instance, February 18, 1998,
Santa Marta (Magdalena). Following this decision, on March 2, 1998, the Chairman and Vice
Chairman of the Inter-American Commission sent a letter to the State that this case be
transferred to the ordinary jurisdiction as soon as possible. The State has not responded
to this letter.